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Title IX affected band director’s firing, experts say

View SlideshowRequest to buy this photoKyle Robertson | DispatchLori Cohen, an alumna of the Ohio State marching band, reads a letter in support of Jonathan Waters outside the office of university President Dr. Michael V. Drake.

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Strict federal rules helped chart the course that Ohio State University took as it investigated
its marching band, and the course that OSU leaders took in their decision to fire the band
director.

In the 23-page report that led to the dismissal of Jonathan Waters, Ohio State investigators
wrote that federal Title IX rules guided them to the finding that there was a “hostile environment”
for students in the band. Based on that finding, federal law required them to act.

“Title IX likely loomed large over that decision, especially in today’s climate of enforcement,”
said Erin Buzuvis, a Title IX expert and professor at the Western New England University School of
Law.

Since 1972, Title IX has helped ensure that women have a place in college sports. In recent
years, though, it also has played a star role in a national crackdown on sexual harassment on
college campuses.

Broadly, the rules outlaw discrimination based on sex, and updates to the law have outlined in
detail how schools must respond to complaints of sexual harassment among students or workers.

A school must start investigating as soon as it receives a complaint of sexual harassment,
according to a 2011 update from the U.S. Department of Education. And generally within 60 days, it
must make a finding. If that finding validates the complaint, the school must end the harassment —
or face legal liability from any new victims.

The decision to fire Waters, experts said, falls in line with those rules. Investigators found
that there was a “sexualized” culture that Waters did too little to stop.

“The university received a complaint about a possible example of sexual harassment or sexually
hostile climate, and it did what it was legally obligated to do,” Buzuvis said.

According to OSU’s internal investigation, Waters mishandled a report of sexual harassment in
the band in 2013. University officials then urged him to schedule Title IX training, but he didn’t
take it until later that year — after a student in the marching band was expelled for sexually
assaulting a female band member.

Some of Waters’ supporters reject the notion that OSU’s hands were tied and continue to
argue that the administration was overzealous in its dismissal of the director.

Yesterday, Waters’ attorney, David Axelrod, attacked the university’s investigation, labeling
it “amateurish.” The 10 current or former band members interviewed by the school didn’t
constitute a representative sample, he said.

Waters, meanwhile, released his first public statement since the firing, saying the past few
days have been the most difficult in his life.

“We are profoundly humbled by your ongoing support and love and will continue to need it in the
coming months,” he told supporters.

As of late yesterday, donors had given more than $6,000 to an online fundraising campaign for
Waters and his family, and an online petition calling for his reinstatement had garnered 5,000
signatures.

Officials who have been trained on Title IX at some other colleges, however, said the OSU case
illustrates a changed culture.

Bad behavior no longer can be chalked up to college kids being college kids, said Roger Ingles,
the athletic director at Ohio Wesleyan University in Delaware.

“There’s a lot of pressure on universities to make sure that they’re following up on any type of
accusations of sexual harassment, sexual assault and so on,” he said.

Just because something is a tradition doesn’t make it right, he said. Of the OSU investigators,
he said, “It looks like they did what they were supposed to do.”

Although Title IX requires schools to investigate complaints, it allows schools to find their
own solutions.

“If a school knows or reasonably should know about student-on-student harassment that creates a
hostile environment, Title IX requires the school to take immediate action to eliminate the
harassment, prevent its recurrence and address its effects,” the 2011 revision said.

That’s where many of Waters’ backers disagree with OSU leaders.

Drake and other top administrators concluded that new leadership was the best answer to problems
in the band. Critics of that decision maintain that Waters should have kept his job — with help
from Ohio State to change the culture.

Legally, Buzuvis said, dismissal is the safer move.

“Say you didn’t fire the band director, and say some freshman gets raped on some band activity,”
she said.

In that case, under federal law, the university could be held legally responsible, she said. The
student could say that the university knew about the problem but failed to stop it. The university
would be open to a lawsuit or an investigation by the U.S. Department of Education.

Even some who defend Waters have said Ohio State made the right move. After all, they reason,
Waters was in charge.

That’s an important distinction — in higher education and elsewhere, Buzuvis said.

“Oftentimes, the brunt of a decision falls on the person in charge,” she said. “That’s what
comes with being the person in charge.”